| U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street N.W., Suite 218 • Washington D.C. 20036-4505  |
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| www.osc.gov | December 30, 2005 |
Whistleblower Disclosures
- Overview
- Jurisdictional Requirements
- Filing a Disclosure
- Evaluating Disclosures
- The Referral Process under 5 U.S.C. § 1213(c)
- The Referral Process under 5 U.S.C. § 1213(g)
- The Referral Process under 5 U.S.C. § 1213(j)
Overview OSC’s Disclosure Unit (DU) serves as a safe conduit for the receipt and evaluation of whistleblower disclosures from federal employees, former employees and applicants for federal employment. 5 U.S.C. § 1213. In this capacity, DU receives and evaluates whistleblowing disclosures—which are separate and distinct from complaints of reprisal or retaliation for whistleblowing which are reviewed by OSC’s Complaints Examining Unit as a prohibited personnel practice.
The OSC disclosure process differs from other government whistleblower channels in at least three ways: (1) federal law guarantees confidentiality to the whistleblower; (2) the Special Counsel may order an agency head to investigate and report on the disclosure; and (3) after any such investigation, the Special Counsel must send the agency's report, with the whistleblower's comments, to the President and Congressional oversight committees.
As stated above, a whistleblower’s identity will not be revealed without their consent. However, in the unusual case where the Special Counsel determines there is an imminent danger to public health and safety or violation of criminal, the Special Counsel has the authority to reveal the whistleblower’s identity. 5 U.S.C. § 1213(h).
DU attorneys review five types of disclosures specified in the statute: violations of law, rule or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific danger to public health and safety. 5 U.S.C. § 1213(b). The disclosures are evaluated to determine whether or not there is sufficient information to conclude with a substantial likelihood that one of these conditions has been disclosed.
Jurisdictional Requirements The Disclosure Unit has jurisdiction over federal employees, former federal employees, and applicants for federal employment. It is important to note that a disclosure must be related to an event that occurred in connection with the performance of an employee's duties and responsibilities. The Disclosure Unit does not have jurisdiction over disclosures filed by:
- employees of the U.S. Postal Service and the Postal Rate Commission;
- members of the armed forces of the United States (i.e., non-civilian military employees);
- state employees operating under federal grants;
- employees of federal contractors.
Filing a Disclosure Whistleblowers must make their disclosures to OSC in writing. To facilitate this process, OSC has developed a form which may be used to file a disclosure. OSC Form No. 12, Disclosure of Information. Use of OSC Form No. 12 is not mandatory. However, if you do not use the form, it is important to include your name, address and telephone numbers. For assistance with filing a disclosure, or any other inquiries, please contact the DU Hotline at (800) 572-2249 or (202) 254-3640.
Evaluating Disclosures DU attorneys evaluate the disclosures to determine whether or not there is a substantial likelihood that one of the following conditions has been disclosed: a violation of law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, and a substantial and specific danger to public health and safety. Disclosures are reviewed in the order they are received with disclosures of dangers to public health and safety receiving high priority.
OSC will generally not consider anonymous disclosures. If a disclosure is filed by an anonymous source, the disclosure will be referred to the Office of Inspector General in the appropriate agency. OSC will take no further action on the disclosure.
OSC does not have authority to investigate the disclosures that it receives. In order to make a "substantial likelihood" finding, OSC considers a number of factors including whether the disclosure includes reliable, first-hand information. In general, OSC does not request an agency head to conduct an investigation based on the whistleblower’s second-hand knowledge of agency wrongdoing. Individuals with first-hand knowledge of the allegations are encouraged to file disclosures in writing directly with OSC.
Similarly, speculation about the existence of misconduct does not provide OSC with a sufficient legal basis upon which to send a matter to the head of an agency. If a whistleblower believes that wrongdoing took place, but can provide no information to support that assertion, OSC will not be able to refer the allegations to the head of the agency for an investigation.
If OSC finds no substantial likelihood that the information discloses one or more of the categories of wrongdoing, the whistleblower is notified of the reasons the disclosure may not be acted on further and directed to other offices available for receiving disclosures.
The Referral Process under 5 U.S.C. § 1213(c) Should OSC find that there is a substantial likelihood that one of the statutory conditions exists, the Special Counsel will refer the disclosure to the appropriate agency head. 5 U.S.C. § 1213(c). The head of the agency is then required to conduct an investigation and submit a written report on the findings of the investigation to the Special Counsel.
The statute sets forth specific information that must be included in the agency’s report.
5 U.S.C. § 1213(d). The agency reports must be reviewed and signed by the head of the agency and must include the basis for the investigation, the manner in which the investigation was conducted and a summary of the evidence gathered. The report must also list any apparent violations found and include a description of any action to be taken as a result of the investigation. OSC does not decide who within the agency will conduct the investigation. However, agency heads frequently task their Offices of Inspector General with the responsibility for investigating the disclosures referred by OSC.
The statute requires agency heads to complete the investigation and report back to OSC on their findings within 60 days. 5 U.S.C. § 1213(c)(1). If an agency needs additional time to complete the investigation and report, an extension of time may be requested. Extension requests must be submitted in writing and must state specifically the reasons the additional time is needed. Extensions will only be granted upon a showing of good cause.
Upon receipt, the agency’s report is reviewed to determine whether it contains the information required by the statute and whether or not the report’s findings appear to be reasonable. 5 U.S.C. § 1213(e)(2). In addition, the whistleblower is afforded an opportunity to review and comment on the agency report.
5 U.S.C. § 1213(e)(1). If the report meets the statutory requirements, the Special Counsel then transmits the report with comments and recommendations to the President and the congressional committees with oversight responsibility for the agency involved. 5 U.S.C. § 1213(e)(3). OSC is also required to place the report in a public file. 5 U.S.C. § 1219. The whistleblower’s comments are also sent to the President and congressional oversight committees.
If the report reveals evidence of a criminal violation it will not be sent to the whistleblower, nor does it become part of the public file. Instead, the agency is required to forward the information directly to the Attorney General and to notify the Office of Personnel Management and the Office of Management and Budget of the referral.
5 U.S.C. § 1213(f).
The Referral Process under 5 U.S.C. § 1213(g) The Special Counsel may also refer cases to the head of an agency where no substantial likelihood determination has been made. 5 U.S.C. § 1213(g)(2). In these cases, the Special Counsel has the discretion to transmit the information provided by the whistleblower to the head of the agency identified in the disclosure. The agency head is then required to inform OSC in writing, within a reasonable time, what action has been or will be taken, and when such action will be completed. The whistleblower is also informed of the referral to the agency head.
OSC may use this discretionary authority in circumstances where the Special Counsel concludes that the information provided by the whistleblower merits the consideration of the agency head, even though it does not meet the statutory criteria for a mandatory investigation under 5 U.S.C. § 1213(c). Thus, this section allows the Special Counsel to issue a formal communication to the head of an agency notifying that agency of a matter of concern within one or more of the five statutory categories.
Section 1213(g)(2) differs significantly from 1213(c). Under 1213(g)(2) there is no requirement for the agency to investigate the allegations nor is the agency required to respond in 60 days. However, the agency is required to inform the Special Counsel in writing within a reasonable amount of time of what action has been taken or is being taken and when the action will be completed. At present, the Special Counsel has interpreted the statutory phrase “reasonable time” to mean 90 days. Thereafter, the agency is required to request extensions of time as in 1213(c) cases.
The Referral Process under 5 U.S.C. § 1213(j) For disclosures of information involving counterintelligence and foreign intelligence information the statute sets forth a different procedure under 5 U.S.C. § 1213(j). If the Special Counsel determines that a disclosure involves counterintelligence or foreign intelligence information, which is prohibited from disclosure by law or Executive order, the disclosure will be transmitted to the National Security Advisor, the Permanent Select Committee on Intelligence in the House and Select Committee on Intelligence in the Senate. 5 U.S.C. § 1213(j). The referral ends the Special Counsel’s involvement with the disclosure and the National Security Advisor and the Congressional intelligence committees decide how to proceed with the information. The disclosure will not be referred to the head of the agency involved for an investigation.
Last Updated: 5/4/05